National Consumer Disputes Redressal
Mrs. Beena Garg vs Kailash Nursing Home And Ors. on 24 July, 2002
ORDER
B.K. Taimni, Member
1. Appellant was the Complainant before the State Commission, who dismissed the complaint by not holding the opposite party negligent in performance of their duties.
2. The case made out by the Complainant was that she was admitted in the 1st Respondent Nursing Home by the 2nd and 3rd Respondents - a husband and wife team - for second delivery of the Complainant's baby on 14.6.1996 where after the operation by the 2nd Respondent, a male baby was delivered. A few hours after the Complainant coming into senses she noticed slight involuntary frequent passage of her urine. The problem persisted and in spite of this fact being brought to the notice of the Respondents, the Complainant was discharged on 23.6.1996. When the problem of leakage of urine increased immensely, she was re-admitted by the Respondents on 6.7.1996 and a catheter was inserted in her vaginal parts and was discharged on 12.7.1996 with an assurance that she will be all right within a week. She was never informed of the cause of the problem. Her situation worsened on account of severe pain and inflamation. At this stage, she decided to have a second opinion, wherein she was diagnosed to have a hole in her urinary bladder called 'utero-vesical fistula' (U.V.F.), which also resulted in 'Menouria' thereby causing leakage of urine along with menstrual blood at the time of menses. Confronted with the above diagnosis, the Respondents for the fist time admitted that there was infact a hole in the urinary bladder. The complainant had to undergo another operation at Gauri Hospital having been diagnosed with U.V. Fistula under Cystoscopy on 2.1.97. In this hospital the complainant was admitted on 18.2.1997 and discharged on 25.2.1997. The alleged medical negligence attributed on the part of the Respondent is stated to be that during the operations carried out at the time of delivery of the second child on 14.6.1996, the Respondents were negligent which resulted in making a hole in the bladder leading to u.v.f. and Manouria and mental trauma of living with a catheter for sometime for which the complainant filed a complainant before the State Commission and praying for award of Rs. 12,35,189/- under several heads.
3. On the other hand the case of the Respondents is that the complainant has not come up with clean hands and has concealed vital facts. According to them the full facts sequence-wise are that the Complainant's first baby was delivered with her consent by the Respondent by a Caeserean Section in March, 1993. The Complainant was warned to not to conceive for two to four years. Much against this advice, the complainant, who is a lawyer by profession and would be deemed to be well informed - again conceived and underwent first abortion on 3.8.1993, and second abortion on 30.12.1993. Again the complainant conceived on October, 1996 and wanted medical termination of pregnancy. The complainant was admitted on 30.12.1995 with case of threatened abortion and discharged the same day. The Complainant was a regular visitor and had faith in Respondents, proof of which is that she underwent her piles operation on October, 1995, carried out by the Respondents. For the second delivery, the complainant was admitted on 14.6.1996 and caeserean delivery was done the same day and was discharged on 23.6.1996 with no complaint. She came back with urine infection on 6.7.1996 - admitted in the Hospital and after treatment discharged on 12.7.1996. The Complainant complained of no problem and had no complaint against the Respondents, proof of which is that she got her mother-in-law operated upon for renewal of her uterinal tumour by the Respondent in August, 1996. As per record of the Gayatri Nursing Home, it has been stated that there was no leakage on 22.7.1996. Dr. Ram Manohar Lohia Hospital record also state that no u.v.fitsula diagnosed. In the record of Gayatri Hospital only a query on u.v. fitsula was raised. it was diagnosed for the first time on 3.1.1997, therefore, the Respondents can not be held responsible for any U.V. Fistula diagnosed in January, 1997 and the Caeserean operation done on the complainant in June, 1996. It is their case that having been clearly warned not to conceive for two-four years after the first delivery, she kept coming back for abortions. Negligence, if any, is of the complainant, who kept conceiving against medical advice and had to undergo termination of pregnancies straining the system. No case of negligence is made out against the Respondents.
4. The State Commission, after hearing the parties and perusing the material on record especially the opinions of several experts and medical literature brought on record by the Respondents, did not find the Respondents negligent, according to them, as the complainant failed to prove her case by any direct evidence or on the basis of report or opinion of any expert supporting the case of medical negligence as alleged by the complainant - thus dismissing the complaint. It is in these circumstances that the complainant has filed this appeal before us.
5. It is argued by the learned Counsel for the appellant that the Respondent concealed the fat of injury during surgery at the time of second delivery on account of which she had been having problem of leakage of urine for which a catheter was inserted. Even though insertion of catheter was denied initially by the Respondents in their written version, but had to admit it in the face of their written note dated 22.7.96, making it clear that the complainant was having this problem immediately/closely after the operation. Cause of problem was never disclosed to the patient. State Commission erred in attributing u.v.f. to repeat caeserean operation. U.v.f. has not occurred at the point and place of previous utirine Scar and it was not the case of respondents that u.v.f. occurred at the previous/Sear which is supported by the diagnosis of Gouri Hospital. Previous history of operations have no bearing of this case of negligence. Had it been so, then it would have occurred at the same place. The literature on the subject speaks of risk of u.v.f. only in repeat caeserean operation. In the instant case it was only the second operation. There is nothing on record to show that the complainant was advised not to conceive for two-four years after the first delivery. The complainant proves her case by the fact that she went in normal condition, but after the surgery on 14.6.1996. There was urine leakage which subsequently revealed u.v.Fistula. This is a case of 'Res-ipsa loquitur' - facts speak for themselves - thus shifting the burden of proof to the respondents in which they completely failed. Hence the complaint need to be allowed and order of the State Commission needs to be set aside.
6. It is argued by the learned Counsel for the Respondents that the order of the State Commission is well reasoned, just and proper and need to be maintained. There has been a long history of Delivery, Conceiving against medical advice two mediant termination of pregnancies and then again an uneventful second delivery as the documents reveal. The document dated 22.7.1996 on which the complainant wishes to rely indeed was issued by the Respondents. Since it was issued in OPD, there was only copy which was with a the complainant, which was not placed on record along with the complaint. For the first time it was field with the rejoinder - only then the Respondent became aware that indeed catheter was inserted to stop urine leakage. The Report of Gouri Hospital dated 22.7.1996 and of Ram Manohar Lohia Hospital dated 23.7.1996 supports the case as it states no urine leakage and only u.v. Fitsula? And no fistula seen respectively. It is only in January, 1997, u.v. Fistula is conformed by Gayatri Hospital and surgery done Respondents cannot be faulted for any action/operation done in June, 1996 and u.v. Fistula detected in January, 1997. No doctor has at any time stated that U.V. Fistula was in any way associated with - much less the result of - the operation done by the Respondents. The onus of proof is with the Complainant as the allegation of medical negligence is levelled by her and vehemently rebutted by the Respondent. No expert evidence/opinion has been led by the Complainant to state that any action of the Respondents was not as per professional ethics or competence or u.v. Fistula was in any way associated with a the operation carried out by the Respondents. In the circumstances, the complainant on whom the burden of proof lies, has failed to prove her case. State Commission has rightly dismissed the complaint and the order calls for no interference.
7. We have seen the material on record and heard the arguments and find that the undisputed facts are that the Respondents had delivered the first child of the complainant through Lower Segment Caeserean Section (L.S.C.S.) in March, 1993, then there was medical termination of pregnancies carried out by the Respondents on the complainant in August and December, 1993 and then again admitted in the Respondent Hospital on 14.6.1996. A male child was delivered through caeserean section done for the second time. From here the controversy starts. While the Complainant says that she started having the problem of involuntary urine leakage almost immediately, but the documents of the Hospital on record contradict this as they clearly state 'no discharge from vagina'. The patient was discharged on 23.6.1996. No record or any evidence has been produced by the Complainant that there was indeed problem of urine leakage, in the absence of which we are unable to accept the factum of this allegation. Much has been made of the hand written prescription dated 22.7.96 issued by the Respondent. Nowhere it states about leakage of urine at the time of discharge on 23.6.96. What it states is as follows.
"Post Operative uneventful and discharged on 23.6.96 on 29.6.96 patient came with urinary track infection with severe anaemia with leak of urine per vagina Foley's catheter kept and patient remained alright except urine leak per vagina on 15.7.9, 17.7.96. Patient was given injection Omnatex, injection Amicin, Injection Metrogyle and other supportives."
8. In our view it states that Complainant leaked urine per vagina on 15.7.96 - 17.7.96. Nowhere it states that Complainant had urine leakage problem at the time of operation on 14.6.96 or at the time of discharge on 23.6.96. Respondents as per record could came to know of the fact of urine leakage only after 29.6.96 when the complainant came back with Urinary Truct Infection (U.T.I.) and severe anaemia. The factum of the prescription has not been disputed but we have but to believe that it came to the notice of the Respondents only when the complainant made his prescription available alongwith the Rejoinder filed by her. Nothing much need to be made of the argument that insertion of catheter was first denied in the written version and later accepted when confronted with the prescription of 22.7.96. This was an OPD slip and patient had it. Written version was filed as per record, since the Respondents did not have access to the letter dated 22.4.96 they had denied the same. We also see that as late as 22.7.1996 Gayatri Hospital where the patient had gone, had recorded ('No leaking at present'? uvf) Dr. Ram Manohar Lohia (R.M.L.) Hospital, however, on 23.7.96 recorded 'clear leaking per vagina since 27.6.1996'. This would be as per the information given by the patient, which would corroborate the rebuttal of the Respondents that on the date of discharge on 23.6.1996, there was no urine leak. At the same time, contrary to the contention of the Respondents that RML Hospital recorded on 23.7.96 'U.V.F. not diagnosed', inf act it had recorded 'suspected u.v.f. since 9.7.1996' and advised medication. It is only in early January 1997 that U.F. Fistula is diagnosed and fistula site located.
9. The question before us is. Is there any relationship established between the two events, the Surgery for delivery on 14.6.1996 and a definite detection of U.V. Fistula in January, 1997? Is this on account of any negligence on the part of respondents and if so is negligence proved? Case of urine leakage hangs in the middle. As per material on record, urine leakage was first noticed after 29.6.1996. Catheratization was done - urine leaked on 15th-17th July, 1996. No other report or record is there to show that there was urine leaking. As far as detection/diagnosis of u.v.fistula is concerned for the first time a question mark is made on 22.7.1996 at Gayatri Hospital - yet no action is taken by either the Complainant or that Hospital Again at R.M.L. Hospital, U.V.Fistula suspected but at the end of it, only oral medication is given. Since neither the Gouri Hospital nor R.M.L. Hospital are the respondents before us - we presume that she was satisfied with the line of treatment advised to her. If negligence has to flow, it has to flow from there as not specific action was taken by them after marking "? U.V.F." by Gayatri Hospital or having written 'Suspected U.V.F. since 9.7.96' by R.M.L. Hospital. Nowhere they have said a word that leakage or suspected u.v.f. is on account of any act of omission or commission on the part of respondents or bear any relationship with the caeserean section delivery done on 14.6.1996. Nothing much can be made out against the Respondents on this count. Next episode is in January, 1997, when after full diagnosis the Complainant is confirmed as having u.v.fistula and site is also located. The status for formation or so is not known as to what the complainant was doing. Nowhere the Gayatri Hospital at any stage attributes u.f. fistula to any negligence on the part of the respondents. After successful surgery done by Gauri Hospital the complainant is all right, but there is no direct evidence brought on record attributing negligence on the part of the respondents. The causes of u.v.f. in India have been discussed in the Text Book as follows.
As per shaw's Textbook of Gynaecology Eleventh Edition (page 191) on Fistulae - Majority of Urinary fistulae in India re the result of pressure necrosis following a long and difficult labour. The head is delayed in its descent through the pelvis and compresses the anterior vaginal wall of the undilated cervix again the back of the symphysis pubis. As the result of prolonged pressure the tissues undergo necrosis and slough about the fifth to seventh day of the puerperium, which leads to a fistulous communications between the bladder and vagina..... Caesarean section can cause either bladder or urateric injury which may lead to fistula formation. (emphasis supported) In majority of the cases the U.V.F. has been treated naturally without any medication and by catheterisation only and never surgically."
10. It is also stated by the Respondents 2&3 - who themselves are qualified Doctors-as follows:
It is submitted, the purpose behind medical advice is primarily not to rupture the LSCS scar of the uterus under any circumstance in all subsequent cases. MTP weakens the uterus scar and repeated MTPs result in further weekening and finally deheicence (i.e. causing rupture). Scare Rupture tends to cause un-manageable complications. The region of scar has a very sensitive area that affects the ureter, the bladder, the uterus and the vagina etc. due to un-even healing process of tissues inside, and when a woman is anaemic (as in complainant's case) the healing is all the more slower thus creating more complications. Therefore, when a woman conceives again the uterus as usual expands fully and presses against other organs and nearly touches to the side of the bladder creating high pressure region around and inside forcing the uterus scar prone to rupture and moment thereby resulting into dangerous conditions endangering lives of both mother and child.
11. Expert opinion Dr. (Mrs.) K.K. Saharan, a Senior Obstetrician and Gyanacologist at Dr. B.L. Kapur Memorial Hospital of Dr. S.K. Bhandari of Sir Ganga Ram Hospital-besides much literature on the subject is on record-which has been relied upon by the State Commission and discussed. As per Dr. Bhandari:
"The fistula can occur under the following circumstances:
A difficult vaginal delivery.
After Caesarean section, particularly after repeat Caesarean section when the urinary bladder may be densely adherent to the uterine scar. In these cases during separation of the bladder wall which can be repaired at the time of surgery. However, sometimes necrosis of the bladder wall takes place after few days leading to Vesico Uterine fistula."
12. Material on record clearly spell out that people who deliver a child after repeat caeserean operation are susceptible to u.s.fistula. In the present case it was 'not only a case of repeat caeserean sections operation but also after two MTPs thrown in between, thus further weakening the system.
13. In our the principle of 'Res ipsa loquitur' as contended by the Complainant shall not be applicable in the facts and circumstances of this case.
14. Black's Law Dictionary describes this principle thus "It is said that res ipsa loquitur does not apply if the cause of the harm is known. This is a dark saying. The application of the principle nearly always presupposes that some part of the of the causal process is known, but what is lacking is evidence of its connection with the defendant's act or omission. When the fact of control is used to justify the inference that defendant's negligence was responsible it must of course be shown that the thing in his control in fact caused the harm. In a sense, therefore, the cause of the harm must be known before the maxim can apply." H.L.A. Hart & Tony Honore. Causation in the law 419-20 (2d ed 1985).
15. In our view not only the Complainant has failed to prove any casual connection between the delivery on 14.6.96 and the u.v. fistula finally located in January, 1997, the complainant has also failed to prove any act of negligence on the part of the Respondents as well as any harm caused by the Respondents.
16. Nowhere, even remotely the complainant has been able to prove that the thing in the control of Respondents, caused the harm. There is no evidence or proof on record on this point. In such circumstances onus has shifted to her to prove her case, as it has been set up by her.
17. In fact, what we see is an effort to conceal the facts of two MTPs-both in the complainant and appeal filed before us.
18. In Halsbury's Laws of England Volume 26 P-17, the negligence has been defined as follows:
"Negligence: duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."
"Degree of skill and care required. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires; a person is not liable in negligence because someone else of better skill and knowledge would have prescribed different treatment or operated in a different way nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical mean skilled in that particular art although a body of adverse opinion also existed among medical men."
19. In Dr. Laxman Balkishan Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, Hon'ble Supreme Court held as follows:
"Doctors must be profoundly indebted to Lord Justice Denning for his summing up in the case of Hatcher v. Black. The details of the negligence alleged are of no importance to the principles involved, but he generalization made in the Judge's summing up speech was vital to a fair and just appraisal of doctor's responsibilities. He said, in a hospital, wen a person was ill and came in for treatment, no matter what care was used, there was always a ris; and it would be wrong and bad law to say that simply because a mishap occurred the hospital and doctors were liable ..... The jury must not, therefore, find his negligent simply because one of the risks inherent in an operation actually took place, or because in a matter of opinion he made an error of judgment. They should find him guilty when he had fallen short of the standard of reasonable medical care, when he was deserving of censure."
20. It is not contended that Respondent 2 and 3 were not qualified did not have experience. Complainant had been going there from first pregnancy - two MTPs and then for the second delivery. Records does bear out that the delivery was uneventful and complainant discharged with no problems. The Respondents were qualified professionals who offered to render service to the complainant. In Hunter v. Handey (1955) SLT 213 Lord President Elyde held as follows:
'The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such a failure as no Doctor of ordinary skill would be guilty of it acting with reasonable care.'
21. All the material on record brings out the fact that the Respondent took due care. There is no proof that the Respondent did not act with due care. Records show second delivery was uneventful, discharged in normal condition. In our view no case of medical negligence is made out. Other Hospitals suspected u.v.fistula - but not followed it u with any specific advice; confirmed only after six months in January, 1997; and then there is nothing on record to link development of u.v.fistula with surgery on 14.6.1996 all this goes on to show what the Expert opinion says, it can happen in the case of repeat (an not repeated - as the complainant would like us to understand) caeserean operation for delivery. This perhaps was the case here. Medical literature and expert opinion on record does to support the case of the Complainant. Thus, in our view the complainant has failed to prove her case and has been rightly dismissed by the State Commission with a very knowledgeable and reasoned order. The appeal is dismissed with cost of Rs. 5,000/-.